Model Rule 7.1 and Truthful Speech
Model Rules 7.1 is the most important rule governing lawyer activities designed to influence people to refer or hire them. In 2018, the ABA reorganized the sections for greater clarity and eliminated most of the idiosyncratic detail. Model Rule 7.1(a) (Information about Legal Services) states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading.
This is the basic rule governing all communications between a lawyer, a law firm, and the public. All other rules assume and build on this basic requirement for honesty and truthfulness. In order to stay within the parameters of Rule 7.1(a), avoid impossible-to-define words such as “better,” “best,” and “more” because they cannot be factually documented. One person’s best is another person’s average. Also, stay away from words such as “specialist” or “expert.” Substitute words such as “experienced,” “knowledgeable,” or “proficient.”
To avoid making “a false or misleading communication,” you need to explain your claims, qualifiers and all. For example, it would be misleading to say, “We win million-dollar verdicts” if there is no mention of lost cases, negotiated settlements, or cases that pay out less money. Misleading statements can create inaccurate expectations on the part of consumers. For example, seeing “million-dollar verdicts” may lead them to think they, too, will collect a million-dollar settlement.
To protect yourself from an inadvertent ethics violation, you could add a disclaimer paragraph at the end of your LinkedIn “About” section, for example, “In some states LinkedIn content is considered attorney advertising. Prior results do not guarantee a similar outcome. Communication with me through LinkedIn does not create an attorney-client confidential relationship.”
Model Rule 7.2 and Referrals and Recommendations
LinkedIn offers many kinds of opportunities for recommendations, a topic covered in Model Rule 7.2(b)(1)-(b)(5). Recommendation is defined as: “A communication [that] . . . endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities” (Comment [2]). On LinkedIn, when someone gives you a recommendation, you will see it first before it is posted on your profile. Be sure it is accurate. Edit out any misstatements or hyperbole. Don’t forget to check the language against your states’ requirements as well.
The intent of the rule also affects the “Skills and Endorsement” section of your LinkedIn profile. The implication of Model Rule 7.2(c) requires you to check this section on a regular basis. Make sure you are being endorsed for your actual skills. Remove all endorsements for skills you don’t have and all endorsements from people who don’t really know what you do.
According to Model Rule 7.2(d), “Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.” Most states load this simple declaration down with lots of filing and transmitting requirements. Here it is just a clean statement easily accomplished on LinkedIn where the profiled person is responsible for all content on his or her page.
A Final Thought
Ethics is a basic presumption embedded in the very notion of professionalism. As such, it is a brand advantage that helps you develop relationships with clients, with the public, and with potential colleagues, referrers, and clients.
Unless you live in a state that has adopted the ABA Model Rules word for word, you must also know and live by the rules of your state, or if you practice in multiple states, the rules of all those states. State rule details can complicate your life, but you must follow them.
None of the new ABA Model Rules inhibit your use of LinkedIn for visibility and thought leadership. In fact, by directly authorizing specific marketing and business development expenditures, the new Model Rules suggest support for your presence on LinkedIn while reminding you of some cautions that protect your professionalism.